Lead Opinion
Wаlter and Joan Aycock sued Laura and Thomas Calk for injunctive relief and damages allegedly arising out of an ongoing feud between the parties. The complaint asserted causes of action for stalking, deprivation of the Aycocks’ right of privacy, and assault and battery. The Calks answered the complaint and counterclaimed for damаges allegedly resulting from stalking, slander, deprivation of the full use and enjoyment of their property, and assault and battery. The Aycocks moved the court to strike the Calks’ counterclaim on the ground that the Calks were required to assert their claims in an earlier action between the parties and that the claims were therefore barred by the doctrines of res judicata and/or collateral estoppel. The trial court granted the Aycocks’ motion and ruled, sua sponte, that because the Aycocks’ complaint arose out of the same set of facts which formed the basis of the earlier action, it too was subject to dismissal. The trial court accordingly dismissed the Aycocks’ cоmplaint. The Aycocks appeal from that order, asserting that the trial court did not have the authority to dismiss their complaint sua sponte. We agree and therefore reverse.
It is clear that in dismissing the Aycocks’ complaint, the trial court considered matters outside the pleadings, thereby converting the order into one for summary judgment. OCGA § 9-11-12 (b). See Allera Corp. v. Derby Cycle Corp.,
While the record as it stands may support the trial judge’s ruling, it also shows that the Aycocks were not notified that the trial court intended to rule upоn the merits of their claim and that they were not provided a full and final opportunity to respond to the court’s sua sponte review. The notice requirement is clear, simple to meet, and necessary. We should not muddy the waters by assuming a party had notice where the record shows none was given. We are thus required to remand the cause so that the Aycocks may be given such fair notice and an opportunity to respond.
Judgment reversed.
Dissenting Opinion
dissenting.
I respectfully dissent, as it is time to end this litigation between neighbors.
1. Before addressing the issue оf notice, I note that the appeal was originally filed in this Court, It was transferred to the Supreme Court because it is frоm the dismissal of a complaint for a restraining order, the primary relief requested. Plaintiffs only later
2. In the exercise of jurisdiction of the appeal, this Court should affirm the trial court with direction to enter summary judgment because thе dismissal is in effect a summary judgment for defendants. The intended result is correct, but what must be clarified is that the case is proрerly ended. Where the trial court incorrectly grants summary judgment rather than a motion to dismiss, in cases such as Rehco Corp. v. Calif. Pizza Kitchen,
Plaintiffs had full notiсe that the trial court would consult the record in the first suit, i.e., Calk v. Aycock et al., CA No. 94-6451-4 (DeKalb Superior Court). In fact, plaintiffs referred to and рurportedly attached a part of that record to their brief in support of their motion to strike defendants’ cоunterclaim. And the transcript of the hearing in the prior case has been made a part of the record in this cаse, at plaintiffs’ request in their notice of appeal. The prior suit was the very basis for plaintiffs’ own motion to strike defendants’ counterclaim. There is no need for further notice and opportunity to respond to the court’s sua sрonte grant, in effect, of summary judgment to defendants. Based on the record in the prior suit, the Court did grant plaintiffs’ motion and dismissеd the counterclaim. The same record establishes that the Aycocks even tried to bring into the testimony in the prior suit еvidence of what they now complain and could have complained of then. Instead of filing a compulsory counterclaim, however, they filed a separate action before the hearing on the Calks’ lawsuit. For that reason, their own complaints were not relevant to the hearing on the Calks’ complaint for a permanent restrаining order against the Aycocks, which was granted.
The trial court in this case found that “[tjhere is no dispute that this action, filed one day before the final hearing in Calk v. Aycock, arises out of the same set of facts which formed the basis for that action.” Plaintiffs do not demonstrate, by ordering transmittal of the record in the Calk case, that the pleadings show that the present suit arises out of a different transaction or occurrence than was the subject of the Calk suit. OCGA § 9-11-13 (a); Tenneco Oil Co. v. Templin,
Moreover, as recognized by the trial court, plaintiffs’ own motion to strike the counterclaim on the grounds of “collateral estoppel” admits that these claims of these fоrmer next-door neighbors against each other are “ ‘logically related.’ ” P & J Truck Lines v. Canal Ins. Co.,